A California federal court has granted in part and dismissed in part a motion to dismiss a putative consumer class action against The Hain Celestial Group alleging that the company mislabels its Sunflower Dream Drink as “all natural” despite containing artificial or synthetic ingredients, including xanthan gum and folic acid. Anderson v. The Hain Celestial Grp., Inc., No. 14-3895 (N.D. Cal., San Jose Div., order entered April 8, 2015). Hain challenged the plaintiff’s standing to sue for the alleged mislabeling of “substantially similar” products she did not personally purchase as well as standing for injunctive relief because she did not indicate that she would purchase Sunflower Dream Drink again. The court disagreed with the first argument, finding that the products the plaintiff did not purchase are substantially similar because they feature the same “all natural” representation and contain artificial, synthetic or extensively processed ingredients. Discussing the argument against standing for an…
Category Archives Issue 562
Public Employees for Environmental Responsibility (PEER) has filed a petition with the U.S. Department of Agriculture (USDA) arguing that the agency does not adhere to the goals of its Scientific Integrity Policy because the policy “fails to clearly prohibit political suppression and interference.” The policy was released in 2013 after President Barack Obama directed executive department heads to promote scientific integrity within each department, and PEER argues that USDA’s policy does not protect its scientists to the extent that other agencies’ policies protect theirs. USDA’s policy fails its scientists, PEER argues, because it does not (i) include political suppression and interference in its definition of misconduct; (ii) establish procedures for handling scientific integrity complaints; (iii) protect whistleblowers; or (iv) include “any process or mechanism for preventing politically motivated suppression or for challenging it once it occurs.” PEER also argues that USDA has failed to adhere to its policy because it…
After examining the sodium content of packaged food products sold throughout the United States in 2009, Centers for Disease Control and Prevention (CDC) researchers have reported that “fewer than half of selected food products met Food and Drug Administration [FDA] sodium-per-serving conditions for labeling as ‘healthy.’” Alexandra Lee, et al., “Sodium Content in Packaged Foods by Census Division in the United States, 2009,” Preventing Chronic Disease: Public Health Research, Practice and Policy, April 2015. Using the 2009 Nielsen ScanTrak data to identify all branded products sold in grocery stores with annual sales of $2 million or more, the study focused on products sold in three U.S. Census divisions—South Atlantic, East North Central and Pacific—representing approximately 50 percent of the U.S. population. These three regions also “reflect places with high (South Atlantic), medium (East North Central) and low (Pacific) prevalence of hypertension.” The authors then identified “products in the 10 food categories that…
Raising concerns about how the media portrays the concept of food addiction, a new study questions whether endorsement of this model “may cause people to perceive a lack of control over eating which could promote unhealthy dietary behaviors.” Charlotte Hardman, et al., “‘Food Addiction is Real’: The effects of exposure to this message on self-diagnosed food addiction and eating behavior,” Appetite, April 2015. To explore this hypothesis, researchers with the University of Liverpool and University of Bristol directed 60 study participants to read fake new articles describing food addiction as either a “myth” or “real.” The study then used a disguised taste test to measure consumption of “indulgent” and “non-indulgent” snack foods (potato chips, cookies, breadsticks and grapes), in addition to asking participants if they perceived themselves as food addicts. The results evidently showed that “the proportion of self-diagnosed addicts more than doubled (57%) when participants were exposed to information…
The Center for Food Safety, Center for Environmental Health and Beyond Pesticides have filed a lawsuit against the leaders of the U.S. Department of Agriculture (USDA), Agricultural Marketing Service and National Organic Program (NOP) arguing that USDA failed to allow public comments on a contaminated compost rule before issuing a guidance document on the subject. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., filed April 14, 2015). The 2011 guidance at issue allows organic producers to use compost materials treated with pesticides. According to the complaint, “NOP regulations expressly prohibit fertilizers and compost from containing any synthetic substances not included on the National List” of approved exceptions, but the Contaminated Compost decision “contravened that legal requirement, purporting to establish that organic producers may in fact use these contaminated plant and animal materials in compost under certain circumstances.” The decision was never subject to public comment, the plaintiffs argue,…
Days after the U.S. Food and Drug Administration (FDA) released a March 2015 letter warning Kind LLC against using the word “healthy” to describe several of its products, a consumer filed a class action against the company alleging negligent misrepresentation and violations of California consumer protection statutes. Kaufer v. Kind LLC, No. 15-2878 (C.D. Cal., filed April 17, 2015). The FDA Warning Letter listed the packaging of several products that an agency investigation apparently determined violated the Federal Food, Drug, and Cosmetic Act because the products’ nutrient contents do not meet federal requirements to be described as “healthy.” The letter also warned Kind against the use of “+” or “plus” as well as “No Trans Fats.” The putative class action complaint cites the FDA letter, arguing that the “healthy,” “+” or “plus” and “no trans fats” claims mislead consumers into believing that they are purchasing a healthful product. The plaintiff…
A consumer has filed a purported class action against Natural & Tasty LLC alleging that the company misleads consumers by labeling its Goldbaum Quinoa Crisps® as “All Natural” and free of genetically modified organisms (GMOs) despite containing ingredients made from corn and soy because “almost all corn and soy grown in the United States are grown from seeds that have been genetically modified.” Slavinski v. Natural & Tasty LLC, No. 15-80451 (S.D. Fla., filed April 7, 2015). The complaint asserts that nearly all U.S. corn and soy are grown from GM seeds, “and as such, almost all corn and corn-based, as well as soy and soy-based ingredients in the United States are in fact unnatural, synthetic, artificial, and genetically modified ingredients.” The plaintiff points to several ingredients in the quinoa product as unnatural, including maltodextrin, whole grain corn flour, corn starch, and vegetable oil. While similar lawsuits have cited the reasonable…
A consumer has filed a putative class action in Louisiana federal court against several California wineries alleging that their products contain “dangerously high” levels of arsenic, echoing a similar lawsuit filed in California in March 2015. Crespo-Bithorn v. The Wine Grp. Inc., No. 15-1424 (M.D. La., filed April 20, 2015). The complaint alleges that the wineries “sell and distribute wine to consumers at inorganic arsenic levels significantly higher than what the State of California considers the maximum acceptable limit for safe daily exposure” and asserts that the advertising and marketing of each wine was deceptive because it failed to warn of the arsenic levels. The plaintiff seeks national and state class certification and damages for the Louisiana cause of action of redhibition as well as alleged violations of Louisiana consumer protection statutes and the Magnuson-Moss Warranty Act. Details about the March lawsuit appear in Issue 559 of this Update. …
Saeilo Enterprises Inc., and Alphonse Capone Enterprises Inc., have reportedly reached a settlement in a lawsuit alleging trademark and trade dress infringement for a bottle of vodka branded as “Tommy Guns Vodka” and shaped like Saeilo’s Thompson submachine gun. Saeilo Enterprises, Inc. v. Alphonse Capone Enterprises, Inc., No. 13-2306 (N.D. Ill., notification of docket entry filed April 21, 2015). The gun manufacturer alleged in its complaint that the vodka company misappropriated the trade dress and trademark of the Thompson gun with the shape of the bottle and the name, and Saeilo sought an injunction, damages and attorney’s fees. A notice filed with the court indicates that the parties have reached a settlement and will file a stipulation to dismiss, but terms of the settlement were unavailable. Issue 562
A New Jersey federal court has granted Gerber’s motion to compel discovery of medical records in a consumer putative class action alleging that the company misrepresented its probiotic formula as capable of improving infant immune systems. In re Gerber Probiotic Sales Practices Litig., No. 12-835 (D.N.J., order entered April 10, 2015). Gerber requested medical records for the children who ingested the products, but the plaintiffs objected that the “overly broad” request violated their rights of privacy and that the records were subject to physician-patient privilege. The court agreed with Gerber, finding “a legitimate need for medical records as there is no other source that could test the actual effectiveness of the products that claim to produce immune system health. Proof in the form of scientific studies and expert testimony may not be sufficient,” the court said, so “actual facts or the lack thereof may be essential.” Further, the medical records…
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